Baroness Fookes
Main Page: Baroness Fookes (Conservative - Life peer)
Baroness Hayter of Kentish Town (Lab)
My Lords, Amendment 81 deals with which organisations will be caught by the facility time provisions, as the Bill is extremely wide on this at present. According to new Section 172A(9) in Clause 12, it is any public authority, including an organisation which,
“has functions of a public nature and is funded wholly or partly from public funds”.
That does not just cover the police, health service, universities, schools, libraries, the BBC, dental surgeries and GP surgeries—doctors, nurses, receptionists and everyone—but potentially, despite the letter received yesterday from the Minister, social care and retirement homes, hospices, charities, bus companies and, on this definition, the Royal Mail and the Post Office, despite what was said earlier today. This is what the Bill says. It will include some 21,000 bodies, according to table 11 of the impact assessment, of which all but 1,000 are schools.
How are these bodies to be defined? Yesterday, the Minister wrote to my noble friend Lord Mendelsohn saying that, despite the wording of the Bill, the facility time requirements will cover only bodies defined by the ONS as being public bodies. This would therefore include housing associations, the BBC, schools, universities, the Pensions Regulator, NEST and Magnox. The latter is already caught by the exit cap in the Enterprise Bill, so now not only will employees lose some of their exit payments but they could lose the right to lay and union representation in negotiating redundancy plans and terms.
If the Government really do mean ONS-defined public authorities, how does that tally with the current wording of the Bill? It says:
“The regulations may provide, in relation to a body … that is not a public authority but has functions of a public nature and is funded wholly or partly from public funds, that the person is to be treated as a public authority for the purposes of subsection (2)”.
That does not mean just ONS-defined bodies but specifically those which are not a public authority but which have functions “of a public nature” and are funded “wholly or partly” from public funds. That is clearly ONS-plus.
I am afraid the Minister’s response on 2 February to the noble Baroness, Lady Fookes, the chair of the Delegated Powers and Regulatory Reform Committee—that,
“it has never been the Government’s intention to capture private or voluntary sector providers of contracted out public services or charitable organisations”—
simply does not hold water. That is not what the clause says, despite the Government having had plenty of time to amend the wording. Hence we have tabled Amendment 82A to be absolutely certain that charities cannot be included. Amendment 82B, in the name of my noble friend Lord Stevenson, would exclude cultural bodies, which are anyway only partially publicly funded.
In her letter, the Minister confirmed that free schools and academies—which, yes, were meant to have been promised the freedom to run themselves—would be included in this new bit of government regulation. Local authority and maintained schools of course are already required, as we heard earlier, to publish information on facility time, so I will ask her the same question that my noble friend Lord Watson asked. Can we therefore assume that the Government are now proposing that the proprietors of academies and free schools will be subject to the same level of disclosure and scrutiny, not just on facility time but on other areas of expenditure? If not, it is extraordinary that the only thing they would have to go public on is the amount of facility time, rather than any other decision they take. Or is that the only bit of transparency that the Government are going to ask academies to face?
Amendment 81 would remove new Section 172A(9), which is undoubtedly a catch-all and a dangerous power which has no place in the Bill, extending as it does government interference into independent, non-government organisations. Amendment 82 makes a similar point because, by including in the Bill organisations which are only partly funded by public money, the Government are laying extra rules on the activities of independent, privately funded bodies with their own governance structures. That goes well beyond public bodies or public authorities in the sense of local authorities and health authorities.
Indeed, we are mystified as to what organisations the provision covers and what “partly” means. Does it mean a grant covering perhaps 5% of an organisation’s funding, even if it is not defined as a public authority by the ONS? Perhaps the Minister could detail some examples of what organisations might be covered which are only partially funded by public money. It is unacceptable for the Government potentially to cap facility time in a body that they only partially fund, so we seek to exclude those bodies altogether.
The important question is: what on earth does this cover? It is no good just having some earlier minor amendments from the Government that mean that we can now put different categories into statutory instruments, when we are not clear whether the definition is just ONS-defined public authorities, public authorities or what it says in the Bill—any other organisation carrying out a public function which receives some or all of its money from public funds. I beg to move.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
My Lords, I point out that if Amendment 81 were to be agreed, I could not call Amendments 82 to 82B inclusive by reason of pre-emption.
Lord Balfe (Con)
I, too, think that we need a slightly better definition of what is a body that is not a public authority that is “wholly or partly” publicly funded. The example that comes to mind is my local Tesco, which includes a pharmacy and a post office, both of which are of course in receipt of some public money. I wonder whether my noble friend will be revisiting her past by asking the local Tesco to conform. Seriously, this is a reach beyond where I think we should be going. It is becoming all encompassing, and I would like us to row back from going quite as far as the clause appears to be taking us.